DoI have to respond to a motion to dismiss?
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DoI have to respond to a motion to dismiss?
I filed small claims against insurance company because they failed to pay for the full amount for my car damages. The insurance lawyer filed motion to dismiss. Do I have to respond to it in writhing or can I wait for hearing date?
Asked on June 13, 2011 under General Practice, Illinois
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
Technically, you don't need to respond at all, since if the motion is not made on valid grounds or with a good basis, it should not be granted. That said, if you were to not show up, there's an excellent chance the court would find against you as a matter of course.When a motion is not uncontested, the court will often not examine it critically and will simply take its assertions, claims, etc. more or less at face value.
Furthermore, the court does not always hear oral arguments on motions--you need to check with the judge's chambers--and sometimes decides on the papers. In that event, not putting in a written response could doom your case, since the motion would then be uncontested. Therefore, the most practical and best option is to both file a written response to the motion and to show up for the hearing, too.
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